Kelly v. State

• Decision Date: 23 December 1981
• Docket Number: No. 81-548,81-548
• Citation: 407 So.2d 1011
• Parties: Norman Delbert KELLY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1011

407 So.2d 1011

Norman Delbert KELLY, Appellant, v. STATE of Florida, Appellee.

No. 81-548.

District Court of Appeal of Florida, Fifth District.

Dec. 23, 1981.

James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Chief, Appellate Division, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

Appellant Norman Kelly appeals from an order withholding an adjudication of guilt and placing him on probation. We REVERSE.

Two off-duty deputies working as security guards at a skating rink saw Kelly standing next to his automobile in the parking lot. Kelly was drinking a bottle of beer and he appeared intoxicated. The guards asked appellant to either enter the skating rink or to leave. Kelly replied that he could drink his beer anywhere he wanted but he otherwise created no disturbance.

The guards then requested identification. To comply, Kelly looked inside the car for his wallet. The car was full of clothes and other personal items. While moving some clothes, an amber-colored prescription bottle came into view. When one of the guards asked him for the bottle, Kelly refused. The guards grabbed the bottle and opened it to ascertain its contents. The bottle contained a single white tablet later identified as methaqualone, a controlled substance.

Kelly was charged with unlawful possession of a controlled substance. Prior to trial, his motion to suppress the evidence was denied. On appeal, Kelly contends that he was illegally detained, that he did not consent to a search of his automobile or to a seizure of the evidence and that the deputies did not have probable cause to seize the evidence; therefore, he argues that his motion to suppress should have been granted.

The state argues that when Kelly refused to obey the guard's request, he was committing a trespass and therefore the guard had the right to temporarily detain him for investigatory purposes. ¹ Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 901.151, Fla.Stat. (1979).

Section 810.09, Florida Statutes (1979), provides in part as follows:

(1) Whoever, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance as to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011, commits the offense of trespass on property other than a structure or conveyance.

(2)(b) If the offender defies an order to leave, personally communicated to him by the owner of the premises or by an authorized person, ... he is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Contrary to Kelly's assertion, his conduct indicates that he did not intend to comply with the request of the deputies. Appellant was asked to go inside the skating rink or leave by the deputies who, as security guards, were "authorized persons" within the purview of section 810.09. The only evidence of Kelly's response was his reply that he "could drink his beer wherever he wanted to." This response reasonably indicates that appellant was defying or intended to defy the order from the deputies. In these circumstances, a limited intrusion to ascertain Kelly's identity while investigating a possible trespass was justified. See Mayo v. State, 382 So.2d 327 (Fla. 1st DCA 1980).

Under the "stop and frisk" statute, however, the right to search does not automatically follow once the right to detain is established. Schnick v. State, 362 So.2d 423 (Fla. 4th DCA 1978). Here, Kelly's automobile was searched without a warrant. To be reasonable, the search must have been conducted within a recognized exception to the warrant requirement. See, e.g., Norman v. State, 379 So.2d 643 (Fla.1980).

The state seeks to justify the search and seizure of the amber colored prescription bottle from Kelly's automobile on what it terms the "plain view" exception to the warrant requirement. In Ensor v. State, 403 So.2d 349 (Fla.1981), a factually similar case, the supreme court recently discussed the confusion between the term "plain view" and what is properly termed "open view." The court distinguished the "plain view" doctrine as established in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), ² from other situations in which officers observe contraband.

In Ensor, police officers had stopped a vehicle for a traffic violation. While the passengers were being questioned outside the vehicle, two other officers looked into the vehicle with their flashlights. One officer spotted a portion of a white object protruding from under the floormat. From squatting and looking into the already opened passenger door, the officer determined the object to be a pistol. At that point, the officer entered the vehicle and retrieved the weapon.

The supreme court characterized this set of facts as an "open-vi...